Opinion
C.A. No.: 6:19-cv-02375-MGL-KFM
12-07-2020
Barbara Boddie, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying his claim for disability insurance benefits under Title II of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits ("DIB") benefits on December 28, 2015, alleging that she became unable to work on November 24, 2014 (Tr. 237-40). The application was denied initially (Tr. 90-109, 111-22, 24) and on reconsideration (Tr. 125-38) by the Social Security Administration. On June 24, 2016, the plaintiff requested a hearing (Tr. 155-56). On April 10, 2018, an administrative hearing was held at which the plaintiff, represented by counsel, and Carey A. Washington, Ph.D., an impartial vocational expert, appeared and testified before an administrative law judge ("ALJ") (Tr. 42-89). On August 16, 2018, the ALJ considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 18-41). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on July 17, 2019 (Tr. 1-3). The plaintiff then filed this action for judicial review (doc. 1).
The ALJ's decision indicates that the application was filed on December 28, 2015; however, there are two applications in the record, one indicating that the application was completed on December 29, 2015, and one indicating that the application was completed on January 28, 2015 (compare Tr. 18 with Tr. 237-40).
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant last met the insured status requirements of the Social Security Act on June 30, 2015.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of November 24, 2014 through her date last insured of June 30, 2015 (20 C.F.R. § 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe impairments: carpal tunnel syndrome, obesity, headaches, anxiety, depression, and adjustment disorder (20 C.F.R. § 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except she could never climb ropes, ladders, or scaffolds, and she had to avoid concentrated exposure to hazards. She was limited to frequent handling and fingering, and frequent overhead reaching with the right upper extremity. The claimant was able to perform simple, one-two step tasks consistent with unskilled work at Specific Vocational Preparation (SVP) levels 1 and/or 2, which could be done on a sustained basis, eight hours per day and five days per week in two-hour increments with normal breaks during an eight-hour workday. She required a low-stress work environment, meaning non-production work, specifically no fast-paced work like an assembly line where one would have to produce a product in a high-speed manner. In addition, in order
to accommodate stress, there would be no public contact and only occasional contact with coworkers.
(6) Through the date last insured, the claimant was unable to perform any past relevant work (20 C.F.R. § 404.1565).
(7) The claimant was born on September 23, 1962 and was 52 years old, which is defined as an individual closely approaching advanced age, on the date last insured (20 C.F.R. § 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 C.F.R. §§ 404.1569, 404.1569a).
(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from November 24, 2014, the alleged onset date, through June 30, 2015, the date last insured (20 C.F.R. § 404.1520(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found disabled or not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 191-92.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff argues that the ALJ erred by improperly relying on vocational expert ("VE") testimony at Step Five (doc. 12 at 17-21). The Commissioner asserts that the ALJ's reliance upon the VE's testimony is supported by substantial evidence and should be affirmed (doc. 13 at 9-15). For the reasons set forth in more detail below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
Reliance of Vocational Expert Testimony
Relying on the Fourth Circuit case of Henderson v. Colvin, 643 F. App'x 273 (4th Cir. 2016) (unpublished), the plaintiff argues that the ALJ erred by failing to obtain an explanation from the VE as to the apparent conflict between the general educational development ("GED") reasoning levels two and three jobs identified by the VE and the plaintiff's limitation to simple, one-two step tasks (doc. 12 at 17-21). Because the ALJ failed to obtain this explanation, the plaintiff contends that the Commissioner failed to meet his burden at Step Five (id.). The Commissioner asserts that there is no apparent conflict and, even if there were an apparent conflict, the error would be harmless because the record evidence supports that the plaintiff could perform the jobs provided (doc. 13 at 9-15).
Social Security Ruling ("SSR") 00-4p provides that occupational evidence provided by a VE "generally should be consistent with the occupational information supplied by the [Dictionary of Occupational Titles ("DOT")]." SSR 00-4p, 2000 WL 1898704, at *2. The SSR further
When vocational evidence provided by a VE . . . is not consistent with information in the DOT, the adjudicator must resolve this conflict before relying on the VE . . . evidence to support a determination or decision that the individual is or is not disabled. The adjudicator will explain in the determination
or decision how he or she resolved the conflict. The adjudicator must explain the resolution of the conflict irrespective of how the conflict was identified.Id. at *4. The Fourth Circuit has held that the ALJ has an affirmative duty to obtain an explanation from the VE regarding apparent conflicts. Id.; Pearson v. Colvin, 810 F.3d 204, 208-09 (4th Cir. 2015). Apparent conflicts include those that seem real or true, but are not necessarily so, meaning "that the ALJ must identify where the expert's testimony seems to, but does not necessarily, conflict with the" DOT. Pearson, 810 F.3d at 209.
Here, the ALJ determined that the plaintiff had the RFC to perform light work with certain limitations, including a limitation as follows:
The claimant was able to perform simple, one-two step tasks consistent with unskilled work at Specific Vocational Preparation (SVP) levels 1 and/or 2, which could be done on a sustained basis, eight hours per day and five days per week in two-hour increments with normal breaks during an eight-hour workday. She required a low-stress work environment, meaning non-production work, specifically no fast-paced work like an assembly line where one would have to produce a product in a high-speed manner. In addition, in order to accommodate stress, there would be no public contact and only occasional contact with coworkers.(Tr. 24). The ALJ then relied on the VE's testimony that, given these limitations, the plaintiff would be able to perform the representative occupations of office helper (DOT #239.567-010), laundry sorter (DOT # 361.687-014), and shipping-and-receiving weigher (DOT # 222.387-074) (Tr. 34-35). The ALJ noted that pursuant to SSR 00-4p, he "determined that the vocational expert's testimony is consistent with the information contained in the [DOT]" (Tr. 35).
The DOT job descriptions not only include general descriptions of the work to be performed, they also include a "definition trailer" indicating things such as the strength rating for the job, the SVP needed, and the GED (reasoning, mathematical, and language) required for satisfactory job performance. DOT, App. C, 1991 WL 688702. Of importance here, GED reasoning level one provides that the worker should be able to apply "commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job." Id. A GED reasoning level of two provides that the worker should be able to apply "commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations." Id. A GED reasoning level of three provides that the worker should be able to apply "commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations." Id. Here, the jobs of office helper and laundry sorter identified by the VE have a GED reasoning level of two. The job of shipping-and-receiving weigher has a GED reasoning level of three.
As noted, the plaintiff argues that the ALJ should have obtained some explanation from the VE regarding the apparent conflict between the GED reasoning level of two jobs, office helper and laundry sorter, and the plaintiff's RFC (doc. 12 at 19-20). In Henderson, relied upon by the plaintiff, in an unpublished per curiam decision, the Fourth Circuit held that there was an "apparent conflict between an RFC that limits [a claimant] to one-to-two step instructions and GED reasoning Code 2, which requires the ability to understand detailed instructions." Henderson, 643 F. App'x at 277 (footnote added). The Commissioner argues, however, that the effect of the ALJ's mental limitations was to limit the plaintiff to unskilled work in general - not specifically to a subset of unskilled work - and that under Lawrence, there is no apparent conflict in this matter (doc. 13 at 10-13). The undersigned disagrees with the Commissioner. As an initial matter, in Lawrence, the Fourth Circuit joined "every other circuit to consider the issue" and found no apparent conflict between GED reasoning level two jobs and an RFC of "simple, routine, repetitive tasks of unskilled work." Lawrence, 941 F.3d at 143. But see Thomas v. Berryhill, 916 F.3d 307, 313-14 (4th Cir. 2019) (finding an apparent conflict between an RFC limiting to jobs involving "short simple instructions" and GED reasoning level two). First, although Henderson is an unpublished case and Lawrence is published, there is no indication that Lawrence overruled or otherwise considered or affected the holding in Henderson. See Lawrence, 941 F.3d 140. As such, the court finds the Commissioner's assertion that Lawrence forecloses the plaintiff's argument unavailing. Moreover, as noted above, the limitation assessed by the ALJ (simple, one-two step tasks) correlates with a GED reasoning level of one in the DOT. See DOT, 1991 WL 688702 (defining GED reasoning level one as requiring that the worker be able to apply "commonsense understanding to carry out simple one- or two-step instructions").
Although the RFC in this matter involved one-two step tasks, as noted by the Court of Appeals in Lawrence v. Saul, 941 F.3d 140, 143 n.7 (4th Cir. 2019), in some situations "tasks" and "instructions" are synonymous.
With respect to the GED reasoning level three job, shipping-and-receiving weigher, it appears that the Commissioner concedes that the ALJ's reliance on this job was in error because the ALJ did not obtain an explanation from the VE for the apparent conflict between this job and the plaintiff's RFC (see doc. 13 at 10 n.7 (noting that any apparent conflict with the shipping-and-receiving weigher job was irrelevant based upon the other two jobs identified by the ALJ in the decision)). Indeed, in light of the finding above that an apparent conflict exists between an RFC limiting an individual to simple, one-two step tasks and jobs requiring a GED reasoning level of two, there is certainly a conflict with the GED reasoning level three job identified by the VE in this matter.
As noted, the Commissioner also argues that there is no apparent conflict between the GED reasoning level two and three jobs and the plaintiff's RFC because the RFC limited the plaintiff to unskilled work with an SVP of one or two (doc. 13 at 10-13). However, GED reasoning levels require distinct consideration apart from SVP. Pearson v. Comm'r of Soc. Sec. Admin., C/A No. 1:16-2726-PMD-SVH, 2017 WL 1378197, at *13 (D.S.C. Mar. 29, 2017), R&R adopted sub. nom., 2017 WL 1364220 (D.S.C. Apr. 14, 2017). The SVP is defined as "the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation" and is rated on a scale of 1 to 9, with 1 being the least amount of time necessary to learn a job, "short demonstration only," and 9 being "over 10 years." DOT, App. C, 1991 WL 688702. On the other hand, GED levels refer to the "education of a general nature[,] which does not have a recognized, fairly specific occupational objective" and are ranked on a scale of 1 to 6, with 1 being the lowest. Id. The GED levels are composed of three divisions: reasoning development, mathematical development, and language development. Id. In light of the foregoing, the court finds that the RFC's inclusion of a limitation to jobs bearing an SVP of one or two did not affect the apparent conflict between the GED reasoning level two and three jobs and the plaintiff's RFC.
Accordingly, in light of the above, the court finds that there is an apparent conflict in this matter as to the jobs identified by the VE, and the ALJ should have obtained an explanation from the VE about how the plaintiff could perform these jobs. The explanation would have allowed the ALJ to resolve any apparent conflicts by determining if the VE's explanation was reasonable and provide a basis for the ALJ's reliance on the VE rather than the DOT.
Harmless Error
The Commissioner also argues that any error by the ALJ should be considered harmless, because even if there is an apparent conflict, the record evidence supports a finding that the plaintiff could perform the jobs identified (doc. 13 at 13-15). However, with respect to harmless error when the ALJ relies on VE testimony in conflict with the DOT, the Fourth Circuit has noted as follows:
As a general proposition, we apply the harmless error doctrine in reviewing a decision of the Commissioner denying a benefits claim. See Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 56, 658 (4th Cir. 2017). We will not affirm for harmless error, however, "[w]here an insufficient record precludes a determination that substantial evidence support[s] the ALJ's denial of benefits." Id. And, in Pearson, we announced that the administrative record is insufficient when it contains an unresolved conflict between an VE's testimony and the DOT. See 810 F.3d at 210.Keller v. Berryhill, 754 F. App'x 193, 199 (4th Cir. 2018) (unpublished) (alterations in original). The Court of Appeals continued, even "assuming that the harmless error doctrine applies in these circumstances - we are yet satisfied that remand is required," because "the administrative record does not clearly demonstrate that [the plaintiff] can actually perform the occupations identified by the VE and relied on by the ALJ at the fifth step." Id. (citations omitted).
Such analysis is fatal to the Commissioner's argument here. For example, the Commissioner makes much of the fact that the plaintiff has completed work for a Master's degree, started/ran a craft business, and that her past relevant work was highly skilled; however, the ALJ made a finding specifically noting that the plaintiff could not return to her previous work based upon her impairments (see Tr. 33). Moreover, the Commissioner's assertion that the court could find evidence in the record supporting that the plaintiff could perform the jobs identified by the VE asks the court to step beyond its purview of substantial evidence review. "A necessary predicate to engaging in substantial evidence review is a record" that adequately explains the ALJ's findings and reasoning. Dowell v. Colvin, C/A No. 1:12-cv-1006, 2015 WL 1524767, at *4 (M.D.N.C. Apr. 2, 2015) (requiring that the ALJ "build a logical bridge between the evidence and his conclusions") (citing Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). Thus, the ALJ's failure to obtain an explanation from the VE regarding the apparent conflict between the reasoning level two and three jobs and the plaintiff's RFC was not harmless. Accordingly, the decision is legally insufficient because it does not contain a basis for the ALJ's reliance on the VE's testimony at step five in light of the apparent conflict between the plaintiff's RFC and the jobs provided by the VE.
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge December 7, 2020
Greenville, South Carolina
The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).